SCOTUS: Vaccine Mandate OSHA
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA, 595 US___ (2022)
On January 13, 2022 the U.S. Supreme Court temporarily stopped President Biden’s OSHA vaccine mandate.1
Posted below are: (1) a copy of the Supreme Court opinion, (2) a highlighted copy of the opinion, (3) a link to the lower court history and case briefs, and (4) a brief filed by 183 Congressmen.
The fact that 183 Congressmen filed a brief in the Supreme Court about something the President has done demonstrates: THIS IS POLITICAL.
The justices presented the issue in different ways, but it boiled down to determining the reach of OSHA.
A striking aspect of this case is that everyone ignores the question of “on what basis does an individual have a right to choose what to put into his own body?” Also nobody addresses the question “why can’t a business hire only unvaccinated people?”2
The court split out as follows:
The majority (Roberts, Kavanaugh, Barrett) wrote:
These justices state that facts as: OSHA enacted a vaccine mandate applicable to substantially all US employers. It pre-empts all State laws. Although there are some exceptions to the mandate, the exceptions are basically meaningless. Thus: “The regulation otherwise operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to Covid-19.”
These justices set forth the case as: “The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the secretary to set workplace safety standards, not broad public health measures.”
Covid-19 is not just a workplace hazard. It is an everywhere hazard. It is a public health issue. These judges would allow “targeted regulations” at specific workplaces, but they won’t allow this very broad regulation.
Employers have to verify vaccine status and maintain proof, or risk fines of $13,653 to $136,532. These justices granted fast relief (this stay of the mandate) because they opined: (1) OSHA will lose this case if it litigates it fully, and because (2) employers and States alleged it would cost them billions to comply, which is money forever lost, even if they were to win the case later.
A concurring opinion (Gorsuch, Alito, Roberts):
These justice set forth the case as: “The central question we face today is: Who decides?… The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 states before us submit, that work belongs to state and local governments across the country and the peoples’ elected representatives in Congress.”
Said another way: “…the question [is] who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the and the liberties of our Constitution’s separation of powers seeks to preserve would amount to little.”
These justices rely on prior constitutional precedent to explain that state and local governments have authority to regulate health. The federal government doesn’t have that authority. Further, if Congress meant to make OSHA a health regulator, not just a workplace regulator, then it should’ve said so clearly, and it did not. But, even if Congress had given OSHA such massive authority, it would be an unconstitutional infringement on separation of powers, and void anyway. We are to have government by the people. Not government by bureaucracy.
The dissenting opinion (Breyer, Sotomayor, Kagan):
These justices set forth the facts as: People are dropping dead from covid and people can get sick at work!!! Government bureaucrats in Washington DC know what is best for everyone everywhere!!! Let them do their job or else we’re going to DIE!!! (Now to be fair, they didn’t use these exact words, but they were indeed rather unsettled).
These justices set forth the case as: “Underlying everything else in this dispute is a single simple question: Who decides how much protection, and of what kind, American workers need from Covid-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?3
Their position is that this relief (the stay) should not have been granted because OSHA would win if the case were fully litigated before this Supreme Court.
These justices accuse the other justices of overstepping their authority and engaging in judicial activism because they have not deferred to OSHA.
These justices state the harms as: Huge harms to people getting sick, no real harms to business - because - OSHA said it wasn’t a big deal, no big harm to business. In other words, instead of believing the businesses and states about how expensive this compliance would be for them, they believe the pampered bureaucrats in DC (who never had to make a profit or meet a budget one single day in their lives) know better about everyone else’s businesses. That is amazing!
The lower court history, briefs and motions are available here.
OSHA is the Occupational Safety and Health Administration division of the US Department of Labor.
Why not simply let the market match those who don’t want to get vaccinated with employers who wish to hire them? And let those who are terrified of covid and want to be only with other vaccinated people go to work in those places. Or let everyone come up with a multitude of ingenious ideas and variations. Let the marketplace, let people, sort it out for themselves. We have dealt with covid for two years already! So the horse is out of the barn at this late date anyway.
This is a false question because “a federal agency or a court” are not the only two choices. What about the individuals themselves? What about the employers — who want to keep good employees, want to keep them well not out sick, and have to make a profit too? What about the States and local governments - which as Gorsuch, Alito and Thomas opined - traditionally regulate public health matters. When a writer presents a false choice such as this (A or B only; and ignores C, D, E, etc.) then it is obvious they are being manipulative.